2006236 (Refugee)

2006236 (Refugee) [2023] AATA 4050 (19 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006236
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Ann Duffield
DATE:19 September 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 September 2023 at 9:55am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – political opinion – member and village secretary for opposition party – harassed and beaten by supporters of governing party – daughters assaulted, drugged and raped – husband recently died, father now elderly and no immediate sources of support – local and low-profile activities, and no adverse interest – no current public political activities – siblings and work in Australia – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Zimbabwe applied for the visa on 8 August 2018. The delegate refused to grant the visa on the basis that she was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 18 September 2023 to give evidence and present arguments. The applicant’s sisters also attended and spoke to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a citizen of Zimbabwe born in [City], [Year]. The delegate was satisfied that the applicant is who she claims to be and there is no evidence before the Tribunal to indicate otherwise. The Tribunal has therefore proceeded to conduct this assessment with Zimbabwe as the receiving country.
The applicant first arrived in Australia in 2017 to care for one of her Australian resident sisters ([Number] are residents, one passed away in [Year]) who had a stroke. Prior to that she lived in Mashonaland. She has [children] who are her natural born children and one who is a stepchild. She lodged the application for the protection visa subject to this review on 8 August 2018. The interview with the department was held on 12 March 2020. The visa was refused on 26 March 2020.
Protection claims
The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.
The applicant claims she became a member of the MDC in 2009 and was the Secretary for Women in her home village and she handed out t-shirts, caps and MDC cards. She was harassed by ZANU-PF supporters in 2009 who wanted her to leave the MDC and forced her to attend their meetings. In August 2013 ZANU-PF people attended her residence and forced her to join ZANU-PF and beat her in front of her family. In January 2018 she moved her daughter to [City] to stay with her [son] due to the violence caused by ZANU-PF. Also, in 2018 election campaign one of the senior ZANU-PF officials accused her of being a sell out because of her support for MDC and said they would deal with her and her family one day.
The applicant claims that soon after the 2018 election ZANU-PF youth came looking for her at night. She claims that as a member of MDC she cannot obtain protection in Zimbabwe. She alleges corruption in her village, and she cannot relocate to other areas because village chiefs want to know the political views of outsiders and that the ZANU-PF are searching for MDC members.
The applicant provided some images of victims who were attacked by the army and believes this will happen to her if she returns to Zimbabwe. The applicant has also claimed that her [daughter] was assaulted by a group of men from the ZANU-PF and in November 2019 another daughter was drugged and raped and fell pregnant. The applicant believes that the rapist was a member of the ZANU-PF. She believes that if she returns the ZANU-PF will rape and kill her. The applicant provided copies of a message history between herself and her daughter’s friend in relation to the alleged rape along with medical certificates and pictures of her daughter with her baby.
Prior to the Tribunal hearing the applicant provided a number of links to articles about violence in Zimbabwe. At the hearing the applicant provided the Tribunal with copies of some photographs of her husband’s funeral which took place last week in Zimbabwe. She also provided a letter of employment and a letter from the CCC councillor of Ward [Number] in Zimbabwe, [Mr A]. She also provided the Tribunal with the originals of her party membership cards which were undated. She told the Tribunal that she was not required to pay annual registration fees and remained a member of the party.
Tribunal hearing
The Tribunal confirmed with the applicant that she did not require an interpreter and was able to conduct the hearing unassisted. The applicant was unassisted by a representative and also confirmed that her husband had passed away the previous week. She told the Tribunal that she was able to participate in the hearing. The Tribunal told her that if she needed to take a break or adjourn the Tribunal would facilitate that.
The applicant told the Tribunal that she arrived in Australia on a tourist visa in 2017 to look after her sister who had a stroke. She hasn’t returned to Zimbabwe since that time. Asked why she applied for a protection visa the applicant said that when she was at home things were not ok politically and she was in trouble with the government. She said that she was the secretary of the women branch in the local MDC party. She said that she lived in the rural area that was home to former president Mugabe and they didn’t want any people to be involved with the Opposition MDC.
Asked to describe her role with the party in as much detail as she could she said that she mostly influenced the women in the village not to support the ruling party. She said that she did this by speaking to them and having private meetings. She said she distributed t-shirts and caps. She said that she used to write down everything that was happening in the village and give it to the seniors of the party. She also claimed to harbour people who had been beaten at their house. She said that people from the ruling party would come after her.
The Tribunal reminded the applicant that she needed to provide as much detail as she could about her claims. The Tribunal informed her that it needed to be satisfied that her activities were such that they would raise the adverse interest of the government. The Tribunal told her that it was not thus far persuaded by her account and asked her for more detail.
The applicant said that her meetings were not public, and she did not organise rallies or publish her reports in the media or anywhere else. She said that she came to their attention because she would not go to party meetings and would come and look for her at her place. She said that everyone knew everyone in the village and where they stayed. She said that she was influencing people and that’s why they wanted to beat her and kill her.
The applicant told the Tribunal that sometimes she and her family did not stay at their house but had to hide in the bushes. She said that it was particularly bad at election times and she was still scared to come home.
The Tribunal put to the applicant that she and her family lived at the same house in the same village for more than 9 years of her alleged membership and activity with the MDC yet she was not harmed or killed and neither were members of her family during that time. The Tribunal put to the applicant that she had claimed that they knew where she lived and so it seems that if they wanted her dead then they had plenty of opportunity.
The applicant said that sometime in 2015 the ZANU-PF youth came to her house at around midnight and beat her but her husband helped her escape. She said that there were five of them and they dragged her from the house. The Tribunal put to her that it seemed unlikely that she and her husband would be able to chase off 5 young men determined to kill her. She said that her husband helped her.
The Tribunal put to the applicant that she recounted in her written submission that this incident happened in August 2013 and asked if she was speaking of another occasion. She said that they took her out of the house and beat her on several occasions.
The applicant said that because of the violence she sent her daughter to live with her son and her father in [City] in January 2018.
The Tribunal reminded the applicant that she was in Australia at that time, and she said that she told her daughter to move. Asked if her daughter, her son and father were involved in politics the applicant said that her father was a chairman of the MDC but was unable to provide any evidence when asked. She said that he is [Age] now and is no longer involved. He has not been harmed.
The applicant told the Tribunal that her daughter was drugged and raped by a member of the ZANU-PF youth. Asked how she knew it was politically motivated she said that these boys wore their party regalia and were easily identified. She then said that the boy was a neighbour of her daughter, and they went to school together. She said that they did not report it to the police and her daughter did not seek medical attention or go to a hospital. The applicant said that the police don’t care about these matters and if we told them that the attack was from a ZANU-PF person then she would have been arrested. The applicant said that hospitals don’t work very well.
The applicant said that she did not find out about the rape until November 2018 when her daughter’s friend texted her to tell her what happened and that she was pregnant as a result. The child was born in around [Year] but was developmentally challenged and died in [Year]. Her daughter is now studying [Subject] at university in [Country] and living on campus there.
The Tribunal asked the applicant about her involvement in Zimbabwean politics since that time and she said that the letter from [Mr A] of the CCC showed that she was still a member of the party. The tribunal put to the applicant that the letter from [Mr A] did not specify what her activities were in the party or how those activities came to bring her to the attention of the authorities the applicant said that she was still communicating with people in the village and telling them not to vote for the ruling party. Asked if she had any evidence of this, she said that she no longer had her old phone. She told the Tribunal that she and others are on a WhatsApp group that talk about politics in Zimbabwe.
The Tribunal asked the applicant about the activities of the group, and it transpires that it is a private group of like-minded people who generally just share information about Zimbabwe amongst themselves. It is not public, does not make public pronouncements or address the media. The applicant told the Tribunal that she does not talk about her views publicly for fear that she will be harmed. She does not have a social media presence of any kind.
The applicant told the Tribunal that if she went back home everyone would know she was involved in talking against the ruling party. She said they all encouraged each other.
Asked what else she did as secretary the applicant said that she used to write reports about the ZANU-PF counsellor who was corruptly given her position back even though she lost the election in 2023. She said this counsellor used to send out the Youth of the party to beat people who opposed the ruling party. The Tribunal asked her how she knew about this and she said that the councillor was her neighbour and she had spoken to her recently.
The applicant told the Tribunal about people who were involved in the opposition who went missing in their area and that people disappeared all the time. She recounted the incident when Blessing Ali was missing and the lawyer who tried to help her was arrested and was still in prison. The Tribunal told the applicant that it understood that the ZANU-PF were involved in such matters, but it needed to be satisfied that anyone in the government would have such an adverse interest in her to be satisfied that she was at risk of significant harm.
Asked what happened with her daughter who remains in Zimbabwe she said that she had been beaten by ZANU-PF and she had bruises and there was a medical report. The Tribunal put to the applicant that this in itself did not constitute evidence that those injuries were the result of a politically motivated beating.
After she was married her daughter moved to [ Town] near the border of Zimbabwe and [Country 2]. She is married. Asked if any of her children were involved in politics, she said that they were not.
The applicant’s sister told the Tribunal that there is no rule of law in Zimbabwe and if you are in the opposition, you are not safe. She said that the applicant feels safe here and is a valued worker in the [Workplace] where she works. They are the only sisters left and their brother in Zimbabwe is married to a very young woman and the applicant would not be welcome in their house.
The Tribunal asked the applicant what happened to her family home, and she said that her husband and she and the children lived in the homestead. Now that he was dead some relatives were staying there for the funeral but otherwise it would be empty. She said it was not safe there for her to live alone. In the past she said that her husband helped her when they came to attack and try to kill her but on her own, she would not be safe. Asked if she could be safe living with her son and father, she said that her father was very old.
The applicant has not been involved with the Zimbabwean embassy here in Australia and has not been had the need to approach them. She said that she was frightened of them. She would have returned to Zimbabwe for her husband’s funeral if she had a visa to return to Australia, but she would have been afraid of being killed.
The Tribunal asked the applicant what the political result was after the last election in August 2023, and she said that a CCC candidate won in their village but at the inauguration the ruling party president in the city changed everything and he was not appointed.
Asked if there was any other reason she feared returning to Zimbabwe the applicant said that her fear was because she was in the opposition party and there was no-one there to support her.
The Tribunal asked the applicant if she wanted more time to provide some evidence, particularly in relation to her alleged activities during the campaign she sought a short adjournment and when the hearing resumed, she showed the Tribunal some conversation threads on her phone. These threads were largely information sharing about events in Zimbabwe and were, in any case, private and not public. The applicant told the Tribunal she did not have anything else to provide.
Country information
The Department of Foreign Affairs and Trade country report on Zimbabwe (2019) indicates the following:
The MDC is Zimbabwe’s primary opposition party. It was founded in 1999 following a civil society convention in Harare aimed at coalescing groups and individuals opposed to the changes proposed in a 2000 constitutional referendum that would have further strengthened the powers of the presidency (see Recent history). The MDC’s inaugural leader was former trade unionist Morgan Tsvangirai, and the party retains strong civil society and labour movement connections. The party’s policies are generally characterised as centre-left in nature. The MDC’s electoral heartland is the major cities, particularly Harare and Bulawayo, and the south-western provinces. The MDC’s current membership is 1.5 million nationwide. MDC members join at the Branch level (for ordinary members) and are expected to attend party meetings and events for at least one year before elevation to the Ward level (for activists).
DFAT assesses that MDC members and supporters at all levels face a moderate risk of official discrimination, in that the government continues to use state authorities to restrict their ability to operate freely in the political sphere. The level and intensity of discrimination will vary according to location, and is likely to be higher in rural areas in which ZANU-PF is in the political ascendency. The discrimination may include harassment, intimidation, threatened or actual violence, and judicial harassment. The risk is likely to be higher for those involved in direct political activism, including through organising (or attempting to organise) and/or participate in street protests.
DFAT assesses that, despite constitutional and legislative protections, women in Zimbabwe face a moderate risk of societal discrimination due to a number of significant disadvantages that include the threat of gender-based violence and other sexually-based harassment (including from state authorities), and long- standing traditional values and gender roles that limit their full participation in the workplace and community. Women in rural communities are particularly disadvantaged.

The MDC party no longer exists in the form it did in 2018. After the death of party president in 2018 prior to the election, Mr Nelson Chamisa became the acting president of the party and contested the presidential election in 2018. After further changes in the leadership and splintering of the party into other entities, Nelson Chamisa went on to form the Citizens Coalition for Change (CCC) in January 2022. In the most recent election, he won 44% of the first-round vote. The CCC is generally seen as the successor to the MDC.
Findings and reasons
The Tribunal accepts that the applicant has a subjective fear of returning to Zimbabwe. Her husband has recently passed away and she faces a future alone at the family homestead. Her daughters are living elsewhere, and her sisters are in Australia. She has a strong bond with her sisters, and they provide her with strong emotional support. The applicant has found a life of purpose working in [a] sector and found a community of people that appreciate and respect her work and the value she brings to her job. The family have suffered tragedy and loss and it would be a very difficult things for them all to adjust to life without the applicant living in Australia and having to return to Zimbabwe. However compelling these reasons may be to allow the applicant to remain in Australia, they do not support a finding that the applicant’s fear of persecution for one of the five convention reasons, or any other reason, is well founded.
For the following reasons, the Tribunal is not satisfied that the applicant is a person to whom Australia owes protection obligations.
Political opinion – member of the opposition
The Tribunal accepts that the applicant is a member of the MDC/CCC. She claims to have been involved in persuading women and others to vote for the MDC in elections prior to 2018 and more recently in the recent election in August 2023. However, she has provided no evidence of that or of how she would influence their vote other than as a participant in a private WhatsApp group of likeminded people. She did not publicly call for people to vote for the MDC but privately through meetings. She was not involved in organising or participating in protests or demonstrations of the publication of anti-government or pro-opposition material. Her involvement, such as it was as secretary, appears to have been administrative at best and perhaps distributing election paraphernalia such as t-shirts and caps. She has said that she does not disseminate her anti-government or pro-opposition views in any social media or other fora.
The Tribunal accepts that the perception that others, in particular, members of the ZANU-PF, may have of her involvement may vary. However, on the basis of the evidence before it, the Tribunal is not satisfied that whatever involvement she had was such that it would bring to the adverse attention of the government or pro-government militants or activists either in her village or anywhere else such that they would seek her out to cause serious harm to her or her family. The Tribunal does not accept that the applicant, or her family, have been harmed by reason of the applicant’s political opinion, or for any other convention-related reason, in the past.
The applicant said that she wrote negative information about the ZANU-PF councillor in the village and sent that information to her elders. She said the woman would organise ZANU-PF youth to attack opposition members. However, it transpires that this woman is a neighbour of the applicant, and she remains in frequent contact with her, even within the past few weeks when they discussed the outcome of the election. It seems to the Tribunal that if the applicant was of adverse interest to the ZANU-PF, then the lady councillor, her neighbour and acquaintance would be in a perfect position to be able to tell the relevant people of not only her whereabouts but her movements and activities so that they could seek her out and harm. As it stands, however, it appears that after nine years of living next door to the ZANU-PF councillor and being known as a member of the opposition, the applicant has however remained alive and unharmed.
Equally, the Tribunal does not accept that the applicant’s daughter was raped because of her (the applicant’s) political opinion. The applicant told the Tribunal that her daughter ‘s attacker was her neighbour, and they were known to each other, and they went to school together. Its not clear how the neighbour would be aware of the applicant’s political opinion.
The Tribunal accepts that women face a moderate risk of societal discrimination and are exposed to the threat of gender-based violence. However, the risk of this in relation to the applicant is, on the basis of the evidence before the Tribunal, remote.
On the basis of the evidence before it, the Tribunal is not satisfied that the applicant or any of her family members was subject to attacks by members of the ZANU-PF or anyone else for her alleged political activities, or her actual or imputed political opinion or for any other reason in the past, or that she was of adverse interest to them or anyone else for any reason such that anyone would wish to seek out her, or her family, in order to cause them significant harm. The Tribunal is not satisfied that the applicant faces a real chance of significant harm if she returns to Zimbabwe either now or in the reasonably foreseeable future.
The applicant has not claimed that she fears harm for any other reason should she return to Zimbabwe.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.
For the reasons set out above, the Tribunal has not accepted that, on the evidence before it, there is a real chance that the applicant will face serious harm from ZANU-PF members, activists, members of the government or anyone else by reason of her actual or imputed political opinion of opposition to the ZANU-PF or her support of the CCC. The applicant has not claimed, and the Tribunal does has not found that there is a real risk that the applicant will suffer significant harm for any other reason as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ann Duffield
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4050

19 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction